9th Circuit Hears Oral Arguments on Whether EMTALA Pre-empts State Abortion Ban

Yesterday, the U.S. 9th Circuit Court of Appeals, sitting en banc, heard oral arguments (video of full oral arguments) in United States v. State of Idaho, (9th Cir., 12/10/2024). The case poses the question of whether the federal Emergency Medical Treatment and Labor Act that requires hospitals accepting Medicare to provide stabilizing emergency treatment to patients preempts state abortion bans when such treatment would involve pregnancy termination. Links to the numerous amicus briefs and court orders in the case are available at the Health Care Litigation Tracker. (See prior related posting.)

Supreme Court Backs Off Deciding Whether EMTALA Pre-empts Idaho's Abortion Ban

In Moyle v. United States, (Sup. Ct., June 27, 2024), the U.S. Supreme Court reinstated an injunction that had been issued by an Idaho federal district court (see prior posting) which barred Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The Supreme Court did this in a per curiam order that vacated a previous stay of the injunction issued by the Supreme Court and which returned the case to the 9th Circuit Court of Appeals, finding that certiorari had been improvidently granted.

Justice Kagan, joined by Justice Sotomayor filed an opinion concurring with the dismissal, saying in part: 

Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute....

[Idaho] mainly argues that EMTALA never requires a hospital to “offer medical treatments that violate state law,” even when they are needed to prevent substantial health harms.... In my view, that understanding of EMTALA is not “likely to succeed on the merits,” and so cannot support a stay of the injunction.

Justice Jackson concurred in the portion of Justice Kagan's opinion that responded to Justice Alito's dissenting opinion. 

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh filed a concurring opinion, saying in part:

A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving. The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up...

On top of that, petitioners have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.

Justice Jackson filed an opinion concurring in part and dissenting in part, saying in part:

This Court typically dismisses cases as improvidently granted based on “circumstances . . . which ‘were not . . . fully apprehended at the time certiorari was granted.’” ... This procedural mechanism should be reserved for that end—not turned into a tool for the Court to use to avoid issues that it does not wish to decide.

The reasons that justified our grant of certiorari in these cases still hold true today.... The importance of recognizing Congress’s judgments in EMTALA remains as imperative as ever. The United States is still hamstrung in its ability to enforce federal law while States pass laws that effectively nullify EMTALA’s requirements. And, on the ground, healthcare providers “have been all but paralyzed by legal uncertainties,” placing pregnant patients at risk while they are waiting to be transferred out of State to receive the care they need....

If anything, the need for a clear answer to the Supremacy Clause question has only increased in the intervening months....

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects....

Justice Alito, joined by Justice Thomas and in part by Justice Gorsuch, filed a dissenting opinion, saying in part:

 At no point in its elaboration of the screening, stabilization, and transfer requirements does EMTALA mention abortion. Just the opposite is true: EMTALA requires the hospital at every stage to protect an “unborn child” from harm....

For those who find it appropriate to look beyond the statutory text, the context in which EMTALA was enacted reinforces what the text makes clear. Congress designed EMTALA to solve a particular problem—preventing private hospitals from turning away patients who are unable to pay for medical care.... And none of many briefs submitted in this suit has found any suggestion in the proceedings leading up to EMTALA’s passage that the Act might also use the carrot of federal funds to entice hospitals to perform abortions. To the contrary, EMTALA garnered broad support in both Houses of Congress, including the support of Members such as Representative Henry Hyde who adamantly opposed the use of federal funds to abet abortion.....

EMTALA is an exercise of Congress’s spending power. And when Congress relies on its authority to attach conditions to the receipt of federal funds, special rules apply....

The potential implications of permitting preemption here are far-reaching. Under the Government’s view, Congress could apparently pay doctors to perform not only emergency abortions but also third-trimester elective abortions or eugenic abortions. It could condition Medicare funds on hospitals’ offering assisted suicide even in the vast majority of States that ban the practice....

NBC News reports on the decision.